With immigration order, Obama chooses politics over law

Posted: June 25, 2012

"With respect to the notion that I can just suspend deportations of immigrants brought here illegally as children through executive order, that's just not the case, because there are laws on the books that Congress has passed." — President Obama, March 28, 2011

Those laws remain on the books. They have not changed. Yet Obama has suspended these very deportations — granting infinitely renewable "deferred action," with attendant work permits — thereby unilaterally rewriting the law. And doing precisely what he himself admits he is barred from doing.

Obama had tried to change the law. In late 2010, he asked Congress to pass the DREAM Act, which offered a path to citizenship for hundreds of thousands of young illegal immigrants. Congress refused.

When subsequently pressed by Hispanic groups to simply implement the law by executive action, Obama explained that it would be illegal. "Now, I know some people want me to bypass Congress and change the laws on my own. ... But that's not how our system works. That's not how our democracy functions. That's not how our Constitution is written."

That was then. Now he's gone and done it anyway. It's obvious why: The election approaches, and his margin is slipping. He needs a big Hispanic vote, and this is the perfect pander.

After all, who will call him on it? A supine press? Congressional Democrats? Nothing like an upcoming election to temper their Bush 43-era zeal for defending Congress' exclusive Article I power to legislate.

With a single Homeland Security Department memo, the immigration laws no longer apply to 800,000 people. By what justification? Prosecutorial discretion, says Janet Napolitano.

This is utter nonsense. Prosecutorial discretion is the application on a case-by-case basis of considerations of extreme and extenuating circumstances. No one is going to deport, say, a 29-year-old illegal immigrant whose parents had just died in some ghastly accident and who is the sole supporter of a disabled younger sister and ailing granny. That's what prosecutorial discretion is for.

The Napolitano memo is nothing of the sort. It's the unilateral creation of a new category of persons — a class of 800,000 — who, regardless of individual circumstance, are hereby exempt from current law so long as they meet certain biographical criteria.

This is not discretion. This is a fundamental rewriting of the law.

Imagine: A Republican president submits to Congress a bill abolishing the capital gains tax. Congress rejects it. The president then orders the IRS to stop collecting capital gains taxes and declares that anyone refusing to pay them will suffer no fine, no penalty, no sanction whatsoever. (Analogy first suggested by law professor John Yoo.)

It would be a scandal, a constitutional crisis, a cause for impeachment. Why? Because unlike, for example, war powers, this is not an area of perpetual executive-legislative territorial contention. Nor is capital gains, like the judicial status of unlawful enemy combatants, an area where the law is silent or ambiguous. Capital gains is straightforward tax law. Just as Obama's bombshell amnesty by fiat is a subversion of straightforward immigration law.

It is shameful that congressional Democrats should be applauding such a brazen end run. Of course it's smart politics. It divides Republicans, rallies the Hispanic vote, and preempts Marco Rubio's attempt to hammer out an acceptable legislative compromise. Very clever. But by Obama's own admission, it is naked lawlessness.

As for policy, I sympathize with the obvious humanitarian motives of the DREAM Act. But two important considerations are overlooked in concentrating exclusively on the DREAM Act poster child, the straight-A valedictorian who rescues kittens from trees.

First, offering potential illegal immigrants the prospect that, if they can successfully hide long enough, their children will one day freely enjoy the bounties of American life creates a huge incentive for yet more illegal immigration.

Second, the case for compassion and fairness is hardly as clear-cut as advertised. What about those who languish for years in godforsaken countries awaiting legal admission to America? Their scrupulousness about the law could easily cost their children the American future that illegal immigrants will have secured for theirs.

But whatever our honest and honorable disagreements about the policy, what holds us together is a shared allegiance to our constitutional order. That's the fundamental issue here. As Obama himself argued in rejecting the executive action he has now undertaken, "America is a nation of laws, which means I, as the president, am obligated to enforce the law. I don't have a choice about that."